State v. Irby

• Decision Date: 20 April 2015
• Docket Number: No. 70418–4–I.,70418–4–I.
• Citation: 187 Wash.App. 183,347 P.3d 1103
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Terrance Jon IRBY, Appellant.

187 Wash.App. 183

347 P.3d 1103

STATE of Washington, Respondent

v.Terrance Jon IRBY, Appellant.

No. 70418–4–I.

Court of Appeals of Washington, Division 1.

April 20, 2015.

David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Erik Pedersen, Skagit Co. Prosc. Atty. Office, Mount Vernon, WA, for Respondent.

Opinion

BECKER, J.

¶ 1 This appeal from a conviction for aggravated murder is unusual in that defendant Terrance Irby waived both his right to be represented at trial and his right to be present. Irby's absence did not excuse the trial court and the prosecutor from their responsibility to assure that Irby's jury was fair and impartial. One of the jurors said during voir dire that she “ would like to say he's guilty.” There was no inquiry by the court or the prosecutor that might have neutralized the meaning of these words. When a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error. Irby is entitled to a new trial.

FACTS

¶ 2 On March 11, 2005, an officer was dispatched to check on James Rock at his residence in rural Skagit County. Rock had not showed up for a scheduled ride provided by a transportation service for the elderly. Rock's body was found in his shop, a large metal garage-type structure set apart from his house by a breezeway. He had been beaten to death several days earlier with a variety of blunt and sharp weapons. Detectives called to the scene found that Rock's bedroom door had been forced open. Several weapons he kept there were missing.

¶ 3 Investigation led to Terrance Irby, a known associate of Rock. Rock's neighbors had seen Irby in the neighborhood on March 8. Irby was soon located in custody in Marysville. He had been arrested there on March 8, after running a red light and attempting to elude police. In Irby's truck, officers found Rock's weapons and boots splashed with Rock's blood.

¶ 4 At Irby's first trial in January 2007, a jury convicted him on charges of aggravated murder in the first degree, burglary in the first degree, and felony murder. In 2011, our Supreme Court reversed Irby's convictions because of a violation of his right to a public trial. The violation occurred when the court and the attorneys agreed by e-mail, without Irby's participation, to dismiss some of the potential jurors before voir dire began. State v. Irby, 170 Wash.2d 874, 246 P.3d 796 (2011).

¶ 5 On remand, the State prosecuted the same charges. The trial court granted Irby's request to proceed pro se. Irby had three different standby counselors. He fired all of them before the second trial began.

¶ 6 On March 5, 2013—the first day scheduled for voir dire—Irby voluntarily absented himself from the trial. Irby said he did not believe he could get a fair trial in Skagit County. By Irby's choice, the trial proceeded before a jury that had been picked without any participation by Irby. The trial court recognized the difficulty of providing a fair trial to an unrepresented defendant who is tried in absentia. Every day before trial resumed, the trial court had Irby brought from the jail into the courtroom so that the court could verify that he still wanted to remain absent. The jury convicted Irby as charged on March 12, 2013.

¶ 7 Irby was represented by counsel at sentencing. Irby's sentence for the aggravated murder conviction was life without the possibility of parole or release. Irby's sentence for the burglary conviction was life without parole as a persistent offender, based on the court's determination that he had two prior strike offenses. The trial court vacated the felony murder conviction to avoid double jeopardy. Irby appeals the judgment and sentence.

JUROR BIAS

¶ 8 The primary issue is whether juror bias violated Irby's right to a fair and impartial jury.

¶ 9 At the beginning of voir dire, the trial judge posed a general question designed to elicit potential bias:

We all have our own perceptions of how things should or ought to be. We acknowledge that all humans are different. The point is could we put aside our personal experiences and sit in judgment as a juror and give both Mr. Irby and the State of Washington a fair trial on a level playing field. That's our purpose of these questions.

Now, that being the case does anybody have anything in their past or anything on their mind that you think wow this just might not be the case for me. I'm not sure I can do this based on the circumstances.

Juror 38 raised her hand, leading to the following exchange:

JUROR NO. 38: I'm a little concerned because I did work for the government, Child Protective Services, I'm more inclined towards the prosecution I guess.

THE COURT: Would that impact your ability to be a fair and impartial juror? Do you think you could listen to both sides, listen to the whole story so to speak?

JUROR NO. 38: I would like to say he's guilty.

There was no follow-up to this exchange. The judge went on to a different juror, and juror 38 was never questioned individually about her remark that she “would like to say he's guilty.”

¶ 10 Later, one of the prosecutors posed a general question about whether anyone had a particularly good or bad experience with police. Juror 27 disclosed that she was inclined to believe law enforcement witnesses. She described herself as “pro police officer”:

JUROR NO. 27: I don't know whether it's necessarily good or bad. My dad retired as a Skagit County Sheriff about six years or so. So I kind of grew up, I knew a lot of older guys now. So I'm just more comfortable more inclined toward, you know, what they say just because I'm more comfortable with police officers.

[PROSECUTOR]: Do you think you would be more inclined to believe a law enforcement officer if they are a witness in a particular case?

JUROR NO. 27: I think I'm more inclined because I'm comfortable. And I also work in a hospital and, you know, we have a lot of guys bringing people in through ER whether it's firemen or policemen. I'm just more comfortable with them, I guess. I have to believe what they say when they bring people in. So I'm just more inclined in that direction, I guess.

[PROSECUTOR]: You've never—from what I recall you've never dealt with any law enforcement officers in this particular case?

JUROR NO. 27: I know a couple of them not super well, but I do know them.

[PROSECUTOR]: Do you believe ... do you think you can put any personal connection you have with law enforcement aside and decide this case based upon the evidence that's going to come in this courtroom and decide the case based on that?

JUROR NO. 27: I think it will be hard for me just because he isn't represented at all. So I'm kind of pro police officer.

[PROSECUTOR]: In your mind it's a combination of those two that causes you a little concern?

JUROR NO. 27: Yes, it causes me concern. I will try, but it does cause me some concern.

Juror 27 was not heard from again in voir dire.

¶ 11 Juror 38 spoke up in response to this question and related a positive experience she had with police when she came home and found her mother had died. “The police came out and were questioning me.... They were very compassionate, and very understanding, and helpful.” Juror 38 later gave a neutral answer to a general question about how to evaluate differing expert opinions.

¶ 12 Voir dire ended with the prosecutor asking generally whether everyone thought they could hold the State to its burden and bring in a verdict based on the evidence:

So, again, I just want to reiterate the State's burden here. Even if there's nobody sitting here through the whole process challenging the evidence, cross examining, presenting its own evidence what have you ultimately comes down to the State's burden. And I think each and every one of you said this morning you are willing to hold the State to its burden. So, you know, potentially maybe you foresee yourself on this jury. Could people here still find—I mean you have to weigh the evidence that you hear. That's all you can do. If you put the State to its burden, as you are being asked to, does everybody here think that they can basically make a finding of guilty or not guilty based on the evidence that you hear? Yes? Okay. Alright.

¶ 13 A number of potential jurors were excused for hardship. The State successfully sought to have another potential juror excused for cause. The State used five peremptory challenges. Jurors 27 and 38 were seated on the jury.

¶ 14 Irby contends these two jurors, particularly juror 38, should have been removed for cause because their remarks demonstrated actual bias against him. The State responds that the issue of juror bias is not properly before this court. Irby, who was neither present nor represented, did not challenge these jurors for cause in the trial court, and the State contends that he forfeited his right to an impartial jury by failing to give the trial court an opportunity to rule correctly on the challenge he now brings.

¶ 15 Under RAP 2.5(a)(3), a party may raise for the first time on appeal a “manifest error affecting a constitutional right.” Criminal defendants have a federal and state constitutional right to a fair and impartial jury. Taylor v. Louisiana,

419 U.S. 522, 526, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ; State v. Brett, 126 Wash.2d 136, 157, 892 P.2d 29 (1995). cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). The error alleged here, seating a biased juror, violates this right. In re Personal Restraint of Yates, 177 Wash.2d 1, 30, 296 P.3d 872 (2013). A trial judge has an independent obligation to protect that right, regardless of inaction by counsel or the defendant. See State v. Davis, 175 Wash.2d 287, 316, 290 P.3d 43 (2012), cert. denied, ––– U.S. ––––, 134 S.Ct. 62, 187 L.Ed.2d 51 (2013) ; Hughes v. United States, 258 F.3d 453, 464 (6th Cir.2001).

¶ 16 A constitutional error is manifest where there is prejudice, meaning a plausible showing by the appellant that the asserted error had practical and identifiable consequences in the trial. State v....